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Supreme Court Rorschach Test on Voting Rights

As state legislatures have increasingly used sophisticated computers to draw voting maps configured to their political interests, districts have taken on odder shapes and prompted cracks about Rorschach ink blots. Friday’s Supreme Court decision in the Texas voting rights case offered its own kind of Rorschach test.

Commentators disagreed about who won and who lost in the continuing dispute over Texas’ new voting districts. (Law Professor Rick Hasen of the University of California, Irvine, has a range of reaction on his blog, including here.) Texas Republicans claimed victory. But so did Democratic advocates for the Latino groups that brought the case. Republicans emphasized language in Perry v. Perez about the importance of a lower court judges deferring to legislative choices. Challengers stressed that the high Court said the GOP-controlled legislature’s map could not take effect before it is approved, according to the Voting Rights Act. (That process is underway in a separate court proceeding.)

I think the divided reaction stemmed from the backdrop of conservative justices’ past criticism of the 1965 Voting Rights Act and the fact that more serious constitutional challenges to the landmark law are moving toward the Roberts Court. In the balance is the Act’s Section 5, which requires covered jurisdictions such as Texas (with a history of discrimination at the polls) to get federal approval before making changes in voting districts or electoral procedures. The preclearance process is intended to make sure a change would not hurt racial minorities who traditionally have been disenfranchised.

Friday’s opinion was plainly a compromise between liberals and conservatives, and it seemed to me to take pains to avoid harshly criticizing either the Texas legislature, which arguably minimized Latino interests in the line drawing, or the federal district court in San Antonio, whose maps better captured the surge in Texas’ Hispanic population since the last Census. In sending the case back, the justices wrote, “Some specific aspects of the District Court’s plans seem to pay attention to the State’s policies, others do not, and the propriety of still others is unclear.” Such language is hardly an indictment (or vindication) of one side over the other.

Adding to the ambiguity, Friday’s opinion was per curiam, rather than being signed by individual justices. Latin for “by the court,” a per curiam suggests the justices believe the law is clear and they are not breaking any new ground. That’s not always the case. Bush v. Gore was a per curiam opinion.

On Friday, no one wrote a dissent and most of us presumed the ruling unanimous. But I’ve learned that sometimes dissenters in these circumstances do not make their views public. We simply do not know at this point what went on behind the scenes or the majority’s real sentiment on Section 5.

Three years ago when the justices sidestepped a constitutional challenge to Section 5, conservatives including Chief Justice Roberts suggested the provision was no longer needed. “Things have changed in the South,” the chief wrote in an opinion laced with more doubts about Section 5 than Friday’s decision voiced. In Perry v. Perez, justices said of Section 5, “This Court has been emphatic that a new electoral map cannot be used to conduct an election until is has been precleared.”

The tone was muted this time around. Signals were mixed. And a question remains about whether Section 5 will survive the real constitutional challenges percolating up from places like Shelby County, Alabama.